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be the best primary evidence in the way of written facts you can get to start the investigation.
Captain RICHMOND. It is presumptive, sir, but we prefer to get the testimony of witnesses in spite of what has been said. I served overseas in this type of work and I relied on the testimony adduced before me by the witnesses far more than any log statement, because the statement has been made if a master logs a man it may be second hand information. It is, however, an official record and the district court accepts it.
Mr. KEATING. A man has no way of logging the master.
Captain RICHMOND. A man has no way of logging the master, that is true, sir. In making investigations, however, our officers have been advised not simply to look at the logbook, but to talk to all interested parties. They have been instructed to talk to the delegates of the union. The union has a delegate on board ship.
Mr. KEATING. The union has a delegate on board ship?
Captain RICHMOND. Yes, usually three, the black gang, the deck, the steward's department, and the deck force.
Mr. GRAHAM. The black gang?
Captain RICHMOND. I am falling into marine terms. That is the engine room. The investigating officer has the right to decide there is no actual basis for the complaint or he can, in fact, admonish the man. If he thinks there is a prime facie case, he may set the case for hearing before what is now the examiner.
Mr. KEATING. I would appreciate it if you would pursue those cases of complaints being made and those that went to hearing, and divide those between officers and men.
Mr. GRAHAM. That would probably take a little time. Let him submit it for the record.
Captain RICHMOND. I will be glad to.
Captain RICHMOND. We attempt to hold the hearing as soon as possible, acknowledging the rights of all of the parties.
Now, during the war when ships had to get out, if necessary, we would hold the hearing on board ship if it was desirable. Our officers would go out in the evenings in order to hear the case when they had witnesses present.
The big difficulty, as Mr. Spingarn pointed out in his statement, is that if a ship comes in it has to be paid off in 48 hours and your witnesses are gone. Our attempt has been to get the case heard when people who know about it are present. At the time of setting this hearing we serve the person charged, as we call him, with charges and specifications, which inform him of the offense he is charged with, tell him of his right to counsel and his right to subpoena witnesses in his own defense and advise him of all of his rights.
As I say the case is heard in the office ashore, if it can be done, because it has a more dignified setting. In many cases you are able to get witnesses to the office when you cannot get them aboard ship.
Mr. KEATING. The Coast Guard office?
Captain RICHMOND. Yes, sir; the Coast Guard office ashore. The examiner is another officer. In the present system he is not familiar with that particular case. He has not been advised of the case. He is selected, not as indicated here by the person who was going to have the case heard after the investigation. He is one in the group of examiners. The cases are more or less rotated around. If it is a case involving the engine room, he would have an officer who has been a former engineer. We assign him. We do not assign an engineer officer to a case involving a deck matter, but it is a case of administering the thing within the availability of your personnel.
Mr. KEATING. What proportion of those officers that hear those cases have been seamen themselves?
Captain RICHMOND. At the present time of the group, I would say that better than 50 percent have been former merchant marine officers. To guess how they came, were seamen prior to obtaining their papers, I would not be able to estimate. About 90 percent of the present examiners are former merchant marine officers.
During the war, in order to get this larger number we needed, we mixed lawyers with these former merchant marine officers, now reserve officers, hoping it would be a case of mutual education; that the merchant marine officers could impart a certain professional knowledge in the sicence of the seagoing profession to the lawyers who also were reserve officers, and that the lawyers might educate the former merchant marine officers and other officers in the legal aspects of the cases in order that we would maintain throughout a uniformity of decision and all of the attributes of a fair hearing. That was our objective.
In addition to that, there were a few officers, like myself, who were regular Coast Guard officers who had had legal training and had been seagoing officers, who were brought in to leaven the whole group.
Mr. KEATING. What about these lawyers, are they still there?
Captain RICHMOND. Most of them being reserve officers we demobilized them, they having taken their points and asked to be released to inactive duty. Of the 29 people we have now there are probably 10 percent of that group. In addition to that there are a number still working on the investigative side of the picture, that is, the presentation of the case to the hearing officer, the examiner.
The investigating officer acts as prosecutor, as has been indicated, in presenting the case before the examiner. The examiner hears the case and decides the case on the merits. Both sides present their witnesses, testimony is taken and the decision is rendered by the hearing officer. Generally, since the cases are not too involved, the decision is rendered right there as to whether the man's certificate or license shall be suspended or revoked.
Mr. KEATING. Are those duties of the investigating officer and the examiner interchangable, the examiner becoming an investigator and vice versa?
Captain RICHMOND. That was the point I was trying to make. They were prior to December 11, last year. They are not now. Commander Edwards and I served overseas together. If he had a case that went to hearing in Cardiff and needed me I would go down from London to Cardiff and vice versa.
Mr. KEATING. And meaning no disrespect to you in any way, you would both co to lunch together!
Captain RICHMOND. Yes, sir; that was the only practical way. Since December 11, to conform with the Administrative Procedure Act, that procedure has been discontinued.
Mr. KEATING. So that all investigating officers are separate?
Captain RICHMOND. Separate, apart, and in different offices entirely.
I do not want to make this a rebuttal, but the statement was made here of an electrician who might be absent half a day and suffer extreme penalties. I suppose there might have been such a case. I can say from my own experience in the foreign field with the 21 officers under me, that the penalty that was indicated this morning would never have been imposed. In the first place, I am inclined to think the investigator, if he had investigated that case, would never have set it for hearing. Second, if it had gone to a hearing, I cannot conceive of any examiner I had, or myself, suspending that man's certificate unless he was an old offender. I mean by that we had a record of previous offenses. Further, if suspension were ordered the man probably would have been placed on probation.
Of the first five or six thousand cases we held under this modified procedure—incidentally this was not something new as far as the law was concerned; we did modify the procedure of the former bureau and streamlined it—80 or 90 percent we placed on probation. You could not overlook the fact a man had failed to join his ship.
On the other hand, we found the primary responsibility was to keep the men aboard ship and keep the ship moving. We recognized another thing. There were a great many young men going to sea. We felt in many instances they had stepped out of line through youth and inexperience. We felt if we could say "you should not have done this; we will suspend your certificate for 30 days and put you on probation" we had in effect accomplished the desired end.
Mr. KEATING. You are a lawyer?
Captain HARRISON. Could I make a statement there. I do not think it is double jeopardy. In some instances it might result in double punishment. Double jeopardy would apply only to the criminal offense for which a man might be imprisoned.
Mr. KEATING. Can not the captain put him in the brig?
Captain HARRISON. He can put him in irons on board ship. That is usually done where it is necessary to protect others on board. If someone goes haywire, intoxicated, and so forth, to save him from fighting Mr. Gorski. Climbing into a fight. Captain HARRISON. Yes, sir.
Mr. KEATING. Judge, you think the only reason it would not be considered double jeopardy would be because it is not a criminal offense?
Captain HARRISON. I am inclined to think so.
Mr. KEATING. The principle involved would be the same as in the case of a criminal offense. It would be like getting stuck for a judgment for $100 on one cause of action and then on the same cause of action before another court later be stuck for $1,000.
Captain HARRISON. It would constitute double punishment.
Mr. GRAHAM. That is what was in my mind when I was asking Mr. Volpian about the fine imposed by the captain and the Coast Guard if it was both in the nature of a fine and not imprisonment. I had the same theory. It is double punishment, not double jeopardy.
Captain RICHMOND. Maybe this would not be in point. Let me make this suggestion. It is possible in the case of an automobile accident in some States that they can fine you and still take away your license. Further you may have to answer a civil judgment.
Captain HARRISON. The provision whereby a master may log a man cover only specific instances. It may be adequate in this particular case, but there are other situations where the limitations on the master may not be adequate in so far as the man continuing on his papers is concerned, so I think while an argument could be made there is double punishment, really we should get down to cases and see whether an injustice has been done, and I feel in the cases the Coast Guard is handling any fair-minded person will decide the punishment was not excessive. In fact, we lean over backwards to be fair in every case.
Mr. GRAHAM. Captain, as I understood Mr. Volpian, and I do not want to break up your point, his argument went to the severity of the punishment. Am I right Mr. Volpian?
Mr. VOLPIAN. Yes, sir.
Captain HARRISON. He spoke of a case where a man took half a day and the master logged him. If the ship was not inconvenienced by his absence, that is one thing, but suppose that ship had to sail, or suppose the man's position or job was such that his presence was important and delayed the ship in sailing. When you have a big ship tied up at the dock it costs money when they are delayed.
Mr. KEATING. Is it a fact none of the men on a ship are what might be called absolutely essential or irreplacable? That statement was made.
Captain HARRISON. Well, I do not know whether I could answer that question definitely or not, but certainly the certificate of inspection lists the complement of officers and seamen necessary for the operation of that ship.
Now, it is within the discretion of the master to grant leave and to set up permissible latitude in absences, but for a man to walk off a ship saying nothing about it to the master or officers, I can see where it may greatly inconvenience them and delay the ship, or might not do anything. Mr. KEATING. Do they usually go AWOL singly or in groups? Captain RICHMOND. There is no rule on that.
Mr. SPINGARN. This is a break-down of hearings held during the quarter ended March 31, and I am dealing only with unlicensed personnel, or seamen. It shows of the cases in which hearings were held, the following action was taken: Eighty-four certificates were revoked, 437 were suspended without probation, and 702 were suspended with probation.
What I am getting at is in a very great number of cases, although disciplinary action was taken, it was coupled with probation, so the man lost nothing.
Mr. GRAHAM. Gentlemen, the hour has arrived for the House to convene, so we will adjourn at this point, subject to the call of the chair.
(Whereupon, at 12 noon, the subcommittee adjourned, subject to the call of the chair.)